State v. Mauldin, 47542

• Decision Date: 07 December 1974
• Docket Number: No. 47542,47542
• Citation: 529 P.2d 124,215 Kan. 956
• Parties: STATE of Kansas, Appellant, v. Robert MAULDIN, Appellee.
• Court: Kansas Supreme Court

Page 124

529 P.2d 124

215 Kan. 956

STATE of Kansas, Appellant, v. Robert MAULDIN, Appellee.

No. 47542.

Supreme court of Kansas.

Dec. 7, 1974.

Syllabus by the Court

1. The rules governing the construction of penal statutes considered and applied.

2. The sole act of selling heroin to a purchaser who, voluntarily, out of the presence and without the assistance of the seller, subsequently injects a quantity of heroin into his body and dies as a result thereof does not invoke the application of the felony murder rule so as to constitute first degree murder within the contemplation of K.S.A.1973 Supp. 21-3401.

Nick A. Tomasic, Dist. Atty., argued the cause, and Vern Miller, Atty. Gen., was with him on the brief for appellant.

Jay H. Vader, Kansas City, argued the cause and was on the brief for appellee.

KAUL, Justice:

This is an appeal by the state under K. S.A.1973 Sipp. 22-3062 from an order dismissing a charge by information of felony murder (K.S.A.1973 Supp. 21-3401). The question posed is one of first inpression in this jurisdiction.

Omitting formalities the information reads as follows:

'. . . (O)n or about the 27th day of November, 1973 one Robert Maudlin, did maliciously and wilfully kill and murder a certain Gary McCallon, while in the perpetration or attempt to perpetrate the crime of selling, administering, delivering, distributing or dispensing any opiates, opium, or narcotic drugs, a felony as defined by 1973 Session Laws, Chapter 259, House Bill #IIII, contrary to K.S.A. 21-3401, Penalty Section 21-4501A. Coutrary to the statute in such case made and provided.'

Our statute defining murder in the first degree reads as follows:

'Murder in the first degree. Murder in the first degree is the killing of a human being committed maliciously, willfully, deliberately and with premeditation or committed in the perpetration or attempt to perpetrate any felony (K.S.A. 1973 Supp. 21-3401).'

Defendant filed a motion to dismiss taking the position that the deceased was not killed nor did he die while the defendant was alleged to have been perpetrating or attempting to perpetrate a felony.

The trial judge filed a well-reasoned memorandum decision setting forth the facts and thoroughly analyzing and discussing all of the issues and the cases from other jurisdictions cited by both parties. We believe the trial court's ruling was entirely correct. Therefore, we shall quote its memorandum decision in full:

'The defendant's motion to dismiss was argued to the court on March 22, 1974, and was taken under advisement. I have now reviewed the file and considered the briefs and arguments of counsel.

'The State contends that the evidence in this case will show that on the evening of November 27, 1974, Steve Cottrell and Gary McCallon purchased a quantity of heroin from the defendant Robert Maudlin. Thereafter, Steve and Gary went to Steve's apartment where Gary prepared and injected himself with a shot of the heroin. He subsequently died from an overdose. For the purpose of this motion, these facts must be accepted as true. The question presented, then, is whether the death of Gary McCallon under these circumstances was 'the killing of a human being. . . . committed in the perpetration. . . . of any felony', within the meaning of K.S.A. 21-3401.

'The question has not been decided in this state. There is precedent from other states, however, although it is not in accord. California holds that the sole act of selling or furnishing a dangerous drug to one who dies as a result of an overdose of such drug constitutes a felony-murder. (People vs Cine (Cline) (270 Cal.App.2d 328) 75 Cal.Repts. 459, Ct.Appeals 4th. Dist.1969). New York, Pennsylvania and Arizona hold to the contrary. (People vs Pickney (38 A.D.2d 217), 328 N.Y.Supp.2d 550-1972; State vs Dixon (109 Ariz. 441), 511 P.2d 623, Ariz.-1973; Commonwealth vs Bowden, 309 Atl.2d 714, Pa.-1973).

'This difference results primarily from a difference of opinion as to what constitutes a homicide committed in the perpetration tration or attempt to perpetrate a felony. Our court has defined this to mean that there must be 'a direct causal relation between the commission of the felony and the homicide.' (State v. Moffit, 199 Kan. 514, i. c. 534 (431 P.2d 879)).

'The State relies rather strongly herein on the ruling in State vs Moffit. The facts in that case were that the defendant, a convicted felon, fired a pistol while assaulting two pedestrians and inadvertently killed a woman sitting on a motorcycle some distance down the street. The court held that the possession of a pistol, after conviction of a felony was a felony (K.S. 21-2611) and was inherently dangerous to human life, and that there was a direct causal relation between the commission of such felony and the homicide. It further held that it was no defense to the felony murder that the defendant did not intend to kill the victim.

'I have no quarrel with this reasoning. It is to be noted, however, that possession of a pistol by a convicted felon is a continuing offense. The court cited with approval from the case of People vs Ford, (60 Cal.2d 772), 388 P.2d 892 (36 Cal.Rptr. 620) Cal.-1964 in which that court speaking of such possession said:

"These later crimes are continuing ones, and were still in the process of being committed when the killing of the officer took place.'

'It should be further noted that even more directly related to the homicide then mere possession of the pistol was the fact that Moffit fired the pistol at two pedestrians in the perpetration of a felonious assault upon them. Thus direct causal relation was not dependent upon the concept of an illegal possession of a gun.

'In the case before me, the defendant's only connection with the homicide was that he sold a quantity of heroin to the deceased who some time later, voluntarily and out of the presence of the defendant, injected himself with an overdose and died as a result. This is not a case where the defendant injected the heroin into the deceased, or otherwise determined the amount of the dose, or assisted in administering the dosage, where different considerations are involved. (See: People vs Crusiani (Cruciani), (70 Misc.2d 528), 334 N.Y.S.2d 515-1972; People vs Poindexter, (51 Cal.2d 142), 330 P.2d 763, Cal-1958).

'Under the State's theory, the time element, or other conduct subsequent to or preceding the sale, are not necessarily relevant if death results from use of the drug. It is felony-murder whether the victim injected himself a few hours later, as here, or a few days later, or whether the purchaser chaser sold or furnished the drug to another who took the overdose. The result is the controlling factor.

'The objective of deterring the sale and use of heroin is, of course, very desirable, but an objective in itself does not justify a rule that is otherwise unsound. For example, there are many drugs other than heroin which are inherently dangerous if taken in excess. It is not only a felony to sell such drugs but to manufacture, prescribe, administer, deliver, distribute, dispense or compound these substances. (Uniform Controlled Substances Act, K.S.A. 65-4101 et. seq.) It is also becoming increasingly accepted that alcohol can be as addictive and inherently dangerous as many drug. (K.S.A. 65-4001 et. seq; Time, April 22, 1974, Alcoholism). The State regulates the sale and use of many things other than drugs, liquor and firearms in the interest of the public welfare and safety. Any one of these transactions could conceivably be encompassed under the State's theory where death resulted from the use of a controlled item. Such a drastic extension of the felony-murder rule by judicial decree is unwarranted, in my...